Senator LUDWIG (10:59 AM)
—I think I just started my speech in the second reading debate on the Anti-terrorism Bill (No. 3) 2004 and the Anti-terrorism Bill (No. 2) 2004. As I said, these bills were effectively one bill—that is, the Anti-terrorism Bill (No. 2)—and that bill was then split to facilitate some of the issues in the other place. Schedules 1, 2 and 5 were put into the Anti-terrorism Bill (No. 3) 2004 and the remainder were kept in the Anti-terrorism Bill (No. 2) 2004. The bills are now cognate so we can deal with the schedules together, as was provided for in the original No. 2 bill.

I welcome the opportunity to speak on not only the bills but also the report of the Senate Legal and Constitutional Legislation Committee on the Anti-terrorism Bill (No. 2) which provides a view on the two bills before us today. The committee considered the provisions which now form part of the Anti-terrorism Bill (No. 3) because they were in the bill which was originally referred by the Senate before the No. 2 bill was split in the House of Representatives. The committee received 95 submissions and took evidence from 16 individual witnesses. I think that is indicative of the high level of community interest in applying appropriate scrutiny of legislation of this kind.

The government and opposition members of the committee joined in a bipartisan report and recommendations. This continues an approach of the committee which goes back as far as the first antiterrorism legislation considered by parliament after September 11 and which has endured through many parliamentary debates. The committee made 10 recommendations in respect of the Anti-terrorism Bill (No. 2) which now apply to both No. 2 and No. 3. The majority of the recommendations relate to the proposed association offence and suggest sensible change to address problems raised in evidence before the committee. For example, the committee recommended that the presumption against bail enacted in the Anti-Terrorism Act 2004 not apply to the proposed offence in light of the fact that it is a less serious offence than the other terrorism offences and does not require any involvement with a terrorist act, actual or planned. The opposition were in a position to consider sensible amendments in respect of that, and we think that the ability of the government to address terrorist and terrorist related offences is important in the fight against terrorism.

The Anti-terrorism Bill (No. 3), as I have said, is the balance of the schedules—it reproduces what were formerly schedules 1, 2 and 5 of the Anti-terrorism Bill (No. 2). Schedule 1 contains amendments to the Passports Act relating to foreign travel documents. Upon the passage of the Australian Passports (Transitionals and Consequentials) Bill, that act will be renamed the Foreign Passports (Law Enforcement and Security) Act. Schedule 2 contains amendments to the ASIO Act dealing with the surrender of passports and the movement of persons in the context of requests for ASIO questioning warrants. Schedule 3, which was formerly schedule 5 to the No. 2 bill, contains amendments to the Crimes Act concerning the use of forensic procedures in disaster victim identification.

Provisions of the bill have been considered by the Senate Legal and Constitutional Legislation Committee, as I earlier indicated, as part of its inquiry into the No. 2 bill. This is because, as I have said, it was referred to the committee as the No. 2 bill, which contained all five schedules. The committee took a balanced approach which recognised the need to ensure our laws deal strongly with terrorism but also are appropriately targeted at and respond to the problem and do not potentially criminalise areas of legitimate behaviour or activity. Schedule 3 is the least controversial proposal in the bill. In essence, it will enable the national DNA database to be used for disaster victim identification and criminal investigation in connection with a mass casualty incident within Australia.

The amendments were recommended by a committee chaired by Mr Tom Sherman AO which was reviewing the provisions put in place by the Crimes Legislation Amendment Act 2002 following the Bali bombing. I look forward to ensuring that that committee report is available and read in conjunction with the report in relation to the Bali bombings that was provided to the Senate yesterday. Both of them provide a broad view on how we can deal with not only the broader issue but also some of the narrower issues that come up and on how we then ensure legislation properly deals with those issues and provides sufficient powers to our law enforcement officers to ensure these sorts of things can be avoided where possible.

In respect of schedule 2, which concerns the machinery of the ASIO questioning warrant regime, the amendments would require that persons who have been notified that the Director-General of Security has sought the consent of the Attorney-General to request a questioning warrant are obliged not to leave Australia, to surrender their passport to the director-general and to not exit Australia without the director-general's permission. The director-general must return any passports as soon as practical if consent or a warrant is refused. This builds on changes passed in the ASIO Legislation Amendment Act 2003 which enabled the confiscation of a passport upon notification of the issuing of a warrant. The Senate committee understandably heard concerns about these provisions, and the ASIO questioning warrant regime was itself controversial and no doubt remains a controversial issue in parts of the community. The Senate committee appreciated, as they said, the serious implications of restricting a person's freedom of movement, but ultimately determined that the amendments were appropriate to deal with cases where it might be necessary to prevent a party from leaving the country before it has been possible to obtain a warrant. In reaching this conclusion, the committee had regard to the safeguards that were incorporated into the warrant regime in the course of parliamentary debate last year and the year before that.

In particular, before seeking the Attorney-General's permission to request a warrant, the director-general must be satisfied that the statutory criteria in section 34C of the act are met. Schedule 1 of the bill concerns foreign travel documents. The schedule creates power to demand, confiscate and seize foreign travel documents so that a person suspected of a serious offence or specified harmful conduct is prevented from leaving Australia using the document. The schedule also creates offences relating to false or misleading statements in connection with and forgery of foreign travel documents. Again, the committee heard a range of concerns about these provisions, but in the final analysis was persuaded of the need for them and was reassured at the conclusion by the presence of an administrative review mechanism. However, the committee did not seek an explanation from the government of why the defence of reasonable excuse was provided in the offences in schedules 21 and 22 but not those in sections 18, 19 and 20.

Another matter on which the opposition seeks some clarification from the government is whether the offences in sections 18 to 22 cover all kinds of false foreign travel documents—for argument's sake, if you take a situation where a person procures a genuine foreign travel document in a false identity by deceiving the relevant overseas authority as to their identity and that deception occurs overseas. I am sure during the debate in the committee stage the government will be able to provide an answer in respect of that issue. On one view, such a travel document appears not to fall within the definition of `false foreign travel document', because it has been issued by the foreign government and has not been altered in an unauthorised way. On this view it does not appear to give rise to an offence under sections 21 or 22 and, because the relevant deception occurred overseas, it does not appear to be an offence under sections 18, 19 and 20, which are subject to standard geographical jurisdiction. We would be interested, as I said, in hearing the government's advice or view on whether such a situation in fact would be covered. In summary, with the benefit of the submissions and evidence to the Senate committee and the committee's report, we believe parliament can now be satisfied of the need for this legislation. As I said earlier and have repeated during the debate, we will be supporting the passage of that legislation.

We have dealt with schedules 1, 2 and 5. By a process of mathematics, there are also schedules 3 and 4. For the benefit of the chamber I will briefly deal with some of the more succinct issues that were covered in relation to 3 and 4. The Anti-terrorism Bill (No. 2) 2004 contains schedule 3, which proposes a new offence of associating with a terrorist organisation, and schedule 4, which proposes a new mechanism for interstate transfer of prisoners on security grounds. These proposals also attracted considerable controversy during the Senate committee's inquiry.

In relation to the association offence, the committee made bipartisan recommendations: that a number of terms in the offence be defined; that a presumption against bail not apply to the offence; that there be changes to the exceptions relating to religious practice and legal advice or representation; and that the operation of the offence be subject to an independent review. Labor have raised several amendments with the government. We note that the government has responded with the amendment it will be moving later, which Labor will not oppose.

The Labor Party carefully considered these proposals and the submissions and evidence about them presented to the Senate Legal and Constitutional Legislation Committee. As I said earlier, Labor is determined to ensure both that our laws deal strongly with terrorism and that they are appropriately targeted at the problem and do not criminalise legitimate social activity. The proposed offence requires the prosecution to prove beyond reasonable doubt that an accused intentionally associates on two or more occasions with another person, knowing that the other person promotes or directs the activities of a listed terrorist organisation, and in doing so intentionally provides support to the listed terrorist organisation and this support assists the listed terrorist organisation to expand or continue to exist. This imposes a heavy burden on the prosecution and appropriately targets conduct that intentionally supports a listed terrorist organisation to continue or expand its activities.

We believe officials of the Attorney-General's Department have made a genuine attempt to craft stringent fault elements that squarely target criminal behaviour in the form of active intentional support of a listed terrorist organisation. We have also given appropriate weight to the evidence from Australian Federal Police Commissioner Mick Keelty about the need for an offence of this kind. That said, however much we as legislators might be able to understand the checks and balances in this bill, there is force in the committee's observations that these subtleties will be lost on communities which are increasingly alarmed and alienated by the legislative proposals coming out of this government. Again, the opposition would urge the government to heed those warnings of the acting Race Discrimination Commissioner in his report Isma—Listen. Stopping the activities of terrorist organisations will require the cooperation and support of the whole Australian community. We simply will not get that cooperation and support if communities close ranks because they feel besieged. Feelings of alienation will only make people more receptive to voices of extremists rather than voices of reason.

There were a number of drafting flaws in the offence which the Senate committee picked up, as I referred to earlier. We are glad the government is moving to fix some of these. The first effect of the government amendments, as I indicated earlier, will be that the presumption against bail created in the Anti-terrorism Act will not apply to this offence, and that is appropriate. The conduct targeted in this offence, while serious, is not of a character that should require an accused to show exceptional circumstances justifying a grant of bail.

The second effect will be that the scope of the exception for legal advice and representation will be expanded to include decisions relating to ASIO questioning, listing of organisations under the Charter of the United Nations Act, proceedings before military commissions, and proceedings relating to passports and travel documents. The government has not picked up the amendment of the committee relating to further definition of numerous terms. We acknowledge that this is a difficult exercise in practice, but we do think at the very least that this issue should be revisited in the independent review of the antiterrorism legislation which is, in fact, fast approaching.

The government has also refrained from moving an amendment to the exception for religious practice. There was some misunderstanding in evidence before the committee about the scope of this exception but, putting this aside, Labor did argue to the government that there is justification for broadening it. For example, the equivalent religious worship exception in the New South Wales Crimes (Sentencing Procedure) Act, which the government has professed to use as a precedent, does not distinguish between public and private places. However, we have not been able to persuade the government of this view and so at the very least we are seeking a clear statement from the government about the scope of this exception, including examples of the places to which it would apply and the reasons why the government believes it should not be broadened. Would it, for example, cover a place that, while sometimes used for private purposes, is opened up to members of the public for religious worship at a particular time and an association takes place during that worship?

Turning to the proposed mechanism for interstate prisoner transfers, the government really must acknowledge that it has not delivered a satisfactory outcome. When the government is dealing with an operational matter as fundamental as transferring prisoners on security grounds, you would expect the government to get the states and territories on board before putting a proposal to the parliament. After all, the states and territories have the responsibility for managing prisons. Instead, we have a situation where the Commonwealth, having been asked by the states and territories to address the issue, put legislation into the parliament and expected the states and territories to support it sight unseen. I am aware of plenty of accusations flying around about who failed to communicate with whom but, as the Senate committee pointed out, it is not the role of this parliament to resolve those communications.

The Senate committee made a bipartisan recommendation that this schedule not proceed before further consultation with the states and territories, and Labor have argued for this to the government. However, the government is pressing ahead and will be amending the bill to apply the mechanism to Commonwealth offences only. We will leave it to the government to explain its position to the states and territories who will have to manage the legislation should it pass. However, we would be seeking a public commitment by the government to work cooperatively with the states and territories to try to address any outstanding operational concerns. We expect them to be able to put that on the record.